Florida law prohibits dairy producers from labeling milk products “skim milk” unless the product has been artificially refortified with the vitamins it lost during the skimming process. This prohibition was challenged to Florida’s Northern District Court by a small dairy farm on the grounds that the regulation violated the First Amendment. The district court upheld the restriction and granted summary judgment in favor of the state. The Eleventh Circuit Court of Appeals reversed, finding the state did not demonstrate that its regulation was not more extensive than necessary to serve the state’s interest under the commercial speech test articulated in Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980).

Under Central Hudson, a court analyzing a restriction on commercial speech is required to make an initial inquiry as to whether the speech is subject to First Amendment protection. Commercial speech is not protected by the First Amendment if it is inherently misleading or concerns unlawful activity. Here, the Eleventh Circuit rejected the state’s argument that the dairy farm’s speech is not protected because it concerns unlawful activity because Florida allows dairy producers to lawfully market unfortified skim milk as an “imitation milk product.” The court also rejected the state’s argument that because it statutorily defined “skim milk” as refortified with vitamins any contrary use of the term is inherently misleading. The court conceded that though a state’s definition of a term could become so popularly accepted that usage inconsistent with the statutory definitions becomes inherently misleading, the state failed to present the court with any evidence to that effect.

Having found the dairy farm’s commercial speech protected by the First Amendment, the court next analyzed the regulation under the Central Hudson test, which asks: 1) whether the asserted governmental interest is substantial; 2) whether the regulation directly advances the asserted governmental interest; and 3) whether the regulation is not more extensive than necessary to serve that interest. The court answered the first two questions in the affirmative without analysis, but held that the state failed to present any evidence that the speech regulation was not more extensive than necessary, noting that less restrictive alternatives, such as additional labeling disclosures, had been discussed by the state and the dairy farm during pre-litigation negotiations. The Eleventh Circuit accordingly vacated the lower court’s decision, finding the state’s regulation violated the dairy farm’s First Amendment rights.

It should be noted that this opinion is perhaps most significant for what it does not say. There has been much debate over whether the Supreme Court’s Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)and Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) decisions, which hold that content or speaker based regulations on speech are subject to a strict scrutiny analysis, is applicable to commercial speech and therefore disrupts the longstanding Central Hudson framework discussed above. Although the majority of courts to analyze this issue have held Central Hudson unaffected by these decisions, the Eleventh Circuit has yet to expressly rule on the issue. Here, the Eleventh Circuit declined to answer the question of whether the state’s commercial speech regulation is subject to strict scrutiny because it could not even survive Central Hudson’s less stringent intermediate scrutiny test and the dairy farm did not argue the regulation is content based.

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